BVA9506728 DOCKET NO. 93-13 951 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for disabilities of the low back. REPRESENTATION Appellant represented by: Nebraska Department of Veterans Affairs ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from June 1958 to June 1978. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a November 1992 rating decision of the Lincoln, Nebraska, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which, in part, denied entitlement to service connection for a cervical spine disability, as well as entitlement to service connection for a lumbar spine disability, to include spondylosis, degenerative disc disease, and status post lumbar laminectomy. The record reflects that the appellant initially submitted a notice of disagreement with the RO's November 1992 rating decision on the following issues in addition to the two on the title page: entitlement to an evaluation in excess of 30 percent for hypertension, status post myocardial infarction (MI) with arteriosclerotic heart disease (ASHD); entitlement to a compensable evaluation for left ear hearing loss; and entitlement to service connection for right ear hearing loss, tinnitus, and heterotropia. By a January 1993 letter, the RO informed the appellant that the appeal period had expired for service connection for heterotropia, which was originally denied in a July 1978 rating decision. In addition, the record contains a January 1993 transmittal slip from the RO indicating "the veteran withdrew his claim" at the time of a scheduled VA examination. As the appellant's substantive appeal and the representative's argument on appeal are limited to the issues of entitlement to service connection for cervical spine and low back disabilities, the Board concludes that the appellant did not perfect his appeal to the Board on the issues of increased evaluations for cardiovascular and left ear hearing loss disabilities, nor on the issues of service connection for right ear hearing loss, tinnitus, and heterotropia. Therefore, as the Board does not have jurisdiction over such issues, they will not be addressed at this time. The Board's decision is limited to the issues developed for appellate review. It is unclear from the record, however, whether the appellant intends to apply to reopen his claim for entitlement to service connection for heterotropia. If so, the appellant should contact the RO and assert such claim with specificity, and the RO should then take appropriate action. Kellar v. Brown, 6 Vet.App. 157 (1994). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he is entitled to service connection for a cervical spine disability, as well as disabilities of the low back. He argues that scoliosis is a disability which existed prior to service, and was aggravated therein. He further agues that he currently suffers from both a cervical spine disability and a lumbar spine disability, to include spondylosis, degenerative disc disease and status post lumbar laminectomy, which are attributable to active service. Alternatively, the appellant contends that such current low back disabilities are attributable to scoliosis. Finally, the appellant's representative argues that the issue of aggravation of the scoliosis was not discussed by the RO. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim for service connection for a cervical spine disability is well-grounded. It is the further decision of the Board that the preponderance of the evidence is against the appellant's claim for entitlement to service connection for disabilities of the low back. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. A chronic cervical spine disability was not clinically shown during service, or within one year of separation. There is no competent credible evidence of a current cervical spine disability, and the claim is not plausible. 3. Scoliosis is a disability which existed prior to service, but was not shown to increase in severity therein. There is no competent clinical evidence of current scoliosis. 4. Spondylosis and degenerative disc disease of the lumbar spine were initially medically shown in 1990, more than a decade after separation from active duty, at time too remote to be reasonably related thereto. Arthritis was not shown within 1 year following separation from service. 5. The appellant does not have a current low back disability attributable to active service or to any event or occurrence therein. CONCLUSIONS OF LAW 1. The appellant has not submitted evidence of a well-grounded claim for entitlement to service connection for a cervical spine disability. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.304(1994). 2. A chronic low back disability, including degenerative disc disease was not incurred in or aggravated by the appellant's active service, nor may arthritis of the lower back be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1153, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.310 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for a cervical spine disability. The threshold question to be answered is whether the appellant has presented evidence of a well-grounded claim with respect to the issue of service connection for a cervical spine disability. A well-grounded claim is one which is plausible, meritorious on its own, or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If a particular claim is not well grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991). A veteran has, by statute, the duty to submit evidence that a claim is well grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991). In Tirpak v. Derwinski, 2 Vet.App. 609 (1992), the United States Court of Veterans Appeals (hereinafter Court) held that the appellant in that case had not presented a well-grounded claim as a matter of law. The Court pointed out that "unlike civil actions, the Department of Veterans Affairs (previously the Veterans Administration) (VA) benefits system requires more than an allegation; the claimant must submit supporting evidence." Tirpak, at 611. The evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. See King v. Brown, 5 Vet.App. 19 (1993) (citing Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990)). In this case, appellant's assertions as to an in-service, as well as to a current cervical spine disability are incompetent. Service connection may be granted for a chronic disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 1991). Service connection may be shown directly or, for certain "chronic diseases," presumed, if the disease manifested to a degree of 10 percent or more within one year after the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). If a disorder is not shown to be chronic during service, continuity of symptomatology after service is required to establish that a disorder is chronic. 38 C.F.R. § 3.303 (1994). Upon examination prior to entry into active service, asymptomatic mild scoliosis to the left with pelvic tilt to the left was indicated. There were no additional findings or diagnoses during such examination. Service medical records subsequently indicated that such scoliosis was in the dorsolumbar area. In September 1966, the appellant was seen for a history of an aching neck for approximately one week. Upon examination, the examiner indicated slight pain upon extension of the neck. Accompanying x-ray of the cervical spine indicated no evidence of disc space narrowing, degenerative disease, fracture or subluxation, nor any significant impingement on the neural foramina bilaterally. The examiner rendered an impression of wryneck, and recommended medication and a cervical collar. There appellant was not subsequently treated for such condition, nor was any cervical spine symptomatology reported during the remainder of the appellant's active duty, including periodic examinations dated in march 1972 and April 1976. Upon examination prior to retirement, there were no complaints, findings or diagnosis of a cervical spine disability. Post-service medical evidence of record includes private treatment reports dated from December 1986 to August 1992, as well as two September 1992 VA examinations with accompanying x- rays. While such private treatment reports indicated extensive medical treatment for spondylosis and degenerative disc disease of the lumbar spine, including a 1990 lumbar laminectomy, as well as continuing treatment for heart disease, there are absolutely no complaints, findings, or diagnosis of a cervical spine disability or related symptomatology. Furthermore, during the September 1992 VA examination, objective range of motion studies of the cervical spine were within normal limits, and range of motion of the neck and head were reported good without pain. The examiner concluded, in part, that there was no pathology of the cervical spine indicated during such examination. Given the lack of competent clinical evidence indicating a chronic cervical spine disability during service, as well as the lack of any competent clinical evidence of a current cervical spine disability, there is no credible evidence that the appellant incurred a chronic cervical spine disability attributable to service. See Rabideau v. Derwinski, 2 Vet.App. 141, 142-143 (1992) (Service connection may be granted for a chronic, not acute, disease or disability) ; Brammer v. Derwinski, 3 Vet.App. 223 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such injury resulted in a present disability). The record reflects relevant treatment for wryneck only on one occasion during service with no residuals noted thereafter, upon retirement, or post-service. The appellant lacks the medical expertise to offer an opinion regarding medical causality or the existence of current cervical spine pathology. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Whereas lay evidence of symptomatology is considered credible evidence, lay assertions of medical diagnosis or causality are not competent evidence, and cannot constitute evidence to render a claim well-grounded. Grottveitt v. Brown, 5 Vet.App. 91 (1993). Since there is no competent credible evidence that the appellant has a current cervical spine disability attributable to active service, the claim is not well-grounded. Grivois v. Brown, 6 Vet.App. 136 (1994). II. Entitlement to service connection for disabilities of the low back. Initially, we find that the appellant's claim for service connection for a low back disorder is well grounded within the meaning of 38 U.S.C.A. §5107(a) (West 1991), in that he has presented a claim which is plausible. This being so, we must examine the record to determine whether the VA has a further obligation to assist in the development of facts pertinent to such claims. 38 U.S.C.A. §5107(a) (West 1991). The evidentiary record contains complete service medical records, and it is not other wise contended. In addition, the record contains private treatment reports dated from December 1986 to August 1992, and two September 1992 VA examinations with accompanying x-rays. Furthermore, the appellant submitted a September 1992 statement indicating that he did not receive any relevant treatment for his lower back conditions prior to August 1990, and that all pertinent medical evidence had been submitted to the RO. In the representatives argument on appeal, he argues that the September 1992 VA examination was inadequate, as there is no indication that the examiner reviewed the appellant's claims folder prior to the examination. Upon review of such examination report, it is clear that the appellant provided an adequate medical history to the examiner, and that the examiner's objective and subjective findings are thorough and complete. Therefore, the Board does not agree with the representative that such examination in inadequate. In his argument on appeal, the appellant's representative asserts that the issue of entitlement to service connection for a low back disability based upon aggravation of scoliosis has not been properly addressed or adjudicated by the RO. In such statement, the representative provided a recitation of relevant laws and regulations as well as case law applicable to such issue, and presented his arguments pertaining thereto. Upon a review of the record, it is apparent that both the November 1992 rating decision and the January 1993 statement of the case discussed that the appellant's scoliosis existed prior to service and was not aggravated therein, and adjudicated such issue as part and parcel of the appellant's claim for entitlement to service connection for a lumbar spine disability. Therefore, the Board concludes that neither the appellant nor his representative would be prejudiced by the adjudication of such aggravation issue on appeal, as the appellant has demonstrated notice of the applicable laws and regulations and presented his argument pertaining thereto. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993). In view of the foregoing, the Board concludes that the service medical records and post-service clinical reports of record are adequate for reaching a fair, well-reasoned determination in this case; and the duty to assist the appellant in the development of facts pertinent to his claim as contemplated by 38 U.S.C.A. § 5107(a) and applicable case law has been satisfied. There appear to be no additional records that have a bearing on this issue. Service connection may be granted for a chronic disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 1991). Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303 (1994). A pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1994). See Green v. Derwinski, 1 Vet. App. 320, 322-23 (1991) Moreover, in the case of wartime service, clear and unmistakable evidence is required to rebut the presumption of aggravation when the preservice disability underwent an increase in severity during service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(b) (1994). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet.App. 292, 297 (1991). See Browder v. Brown, 5 Vet.App. 268, 271-72 (1993) (citing Hensley v. Brown, 5 Vet.App. 155 (1993)). Service connection may be shown directly or, for certain "chronic diseases," presumed, if the disease manifested to a degree of 10 percent or more within one year after the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Under VA regulations, arthritis is delineated such a "chronic disease." If a disorder is not shown to be chronic during service, continuity of symptomatology after service is required to establish that a disorder is chronic. 38 C.F.R. § 3.303 (1994). Finally, service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (1994). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Service medical records indicate a notation of "mild scoliosis to the left with pelvic tilt to the left, asymptomatic; left leg 34 1/2 inches, right leg 34 1/2 inches" upon examination prior entry into service in June 1958. At that time, the appellant was assigned a physical profile of number one in all categories. No additional relevant complaints, findings or diagnoses were noted on such examination. Service medical records further reflect that in August 1965, the appellant complained of a stiff and sore low back for the previous two years. Following an examination of the back and legs, the examiner diagnosed mild dorsolumbar scoliosis of 5 to 7 degrees extension, and recommended a firm bed and lumbar flexion exercises. An accompanying x-ray of the lumbar spine revealed normal alignment of the lumbar vertebral, normal height of the vertebral bodies and intervertebral spaces, and unremarkable apophyseal joints, sacra-iliac joints, and posterior elements. A physical therapy note dated that same month indicated the appellant was instructed on flexion exercises to be continued on a home program. During a July 1966 periodic examination, the appellant reported a history of occasional low back pain since 1960, which was controlled by specific exercises. An Air Force (AF) form 422, Physical Profile Serial Report, dated in April 1968 indicated the appellant's profile serial was permanently changed from a 1 to a 2 for the lower extremities due to mildly symptomatic scoliosis, but with no assignment restrictions. However, the service medical records reflect no treatment for relevant complaints during this time period. Moreover, during a March 1972 periodic examination, there were no complaints or findings of lower back pain or any related symptomatology. Subsequently, service medical records indicate that in September 1973, the appellant complained of a history of back trouble for approximately 15 years, and a recent "attack" for approximately three days consisting of low back pain with some anterior radiation aggravated by sneezing or coughing. Upon examination of the appellant's back, the examiner indicated he stood without scoliosis with equal leg lengths and no atrophy, and had essentially full lumbar range of motion. Paraspinous muscle spasm, greater on the right, as well as tenderness of L4, L5, L5, S1 and over lumbar muscles bilaterally was indicated. In addition, posterior tibial reflexes were not present. However, straight leg raising tests were negative with normal deep tendon reflexes and motor strength, and only subjective complaints of decreased sensation along the inner left thigh and calf were found. Accompanying x-rays were negative. The examiner therefore gave an impression of muscular low back pain, and recommended rest, medication, and subsequent flexion exercises. A November 1973 physical therapy again indicated instruction for flexion exercises to be performed at home. Service medical records contain no subsequent complaints, findings, or diagnoses of low back pain or disability, nor any related symptomatology. Specifically, there are no relevant complaints or findings during an August 1976 periodic examination. Furthermore, on the appellant's examination upon retirement, he reported a history of low back pain. However, the physician indicated the following: "mild scoliosis to the left with pelvic tilt to the left since enlistment physical in 1958; probably congenital; some muscle spasm occasionally, not incapacitating." There is no relevant post-service medical evidence of record prior to 1990, and it is not otherwise contended. Private treatment reports dated since December 1986 from the Trails West Family Practice indicate the appellant initially complained of lower back pain in August 1990. Such records reflect that the appellant suffered a May 1990 MI, and began to experience back pain subsequent thereto in association with prescribed jogging and walking exercises. Inpatient reports dated in August 1990 from the Regional West Medical Center indicate the appellant was admitted for a myelogram and CAT scan due to long-term complaints of recurrent low back pain, which was now radiating down the left lower extremity and knee. Upon initial examination, deep tendon reflexes were equal, straight leg raising tests were negative, and range of motion of the back was "pretty well" with no sensory deficits or sciatic foramen tenderness. The accompanying CAT scan and myelogram of the lumbar spine revealed a possible discogenic lesion at L3-L4, a diffuse disc bulge with secondary mild spinal stenosis at L4-5, and advanced degenerative disc changes at L5-S1. Medication and conservative therapy was recommended, with the suggestion of possible back surgery. Subsequent inpatient reports dated in September 1990 indicate that the appellant underwent decompression of the foraminal lesion at L3-4 and a laminectomy. Such records reflect he was discharged a few days later with improvement. Private records from Regional West indicate the appellant again complained of back pain in March 1991. At that time, he reported occasional but increasing pain in the back and tailbone described as a burning sensation. Upon neurological and orthopedic examination, range of motion of the back was "well" in all directions without discomfort, with no spinal or sciatic foramen tenderness, and no motor abnormalities. Additional findings included a somewhat diminished left patella reflex, probably secondary to the prior disc problems, as well as a decreased right Achilles reflex and decreased sensation over the lateral aspect of the left thigh, leg and fifth toe. A March 1991 lumbar MRI, bone scan, and x-ray performed on an outpatient basis indicated posterior bulging disc material at L4-5 and L5-S1, as well as degenerative disc disease at L4, L5, and S1. Such records further indicate the appellant was admitted for a lumbar myelogram and a CAT scan, but such reports are not associated with these records. However, Ernest Beehler, M.D. opined that those tests would not be dispositive of tailbone pain. In a subsequent letter to Dan Clark, M.D., Dr. Beehler described the aforementioned March 1992 examination, and recommended further follow-up upon increased radiation of such tailbone pain. He further stated that while the disc bulge at L4-5 could result in some current problems, it was his opinion that the appellant's current symptomatology "does not sound like a disc problem." Finally, during a September 1992 VA examination, the appellant reported a history of upper and low back pain and a laminectomy, but with no current radiating pain and no gait impairment. Upon examination, relevant findings included no gait impairment, as well as no neurovascular or motor abnormalities. Furthermore, there was no spinous process, "perispinal" muscular or costovertebral tenderness, nor any sensory loss in the L4, L5 and S1 distributions. Objective range of motion studies of the lumbar spine were to 105 degrees of forward flexion, 35 to 40 degrees of backwards extension, 40 degrees of lateral flexion, and 35 degrees of rotation. The examiner concluded that there was no pathology found on the examination, and ordered appropriate x-rays. Such accompanying x-rays of the lumbar spine revealed generalized spondylosis and degenerative disc disease at L5-S1, as well as some anterior spurring in the lumbar spine. Upon review of all the service and post-service evidence of record, there is simply no competent credible evidence to support a finding that the appellant has a current low back disability attributable to service. First, as the appellant's scoliosis was not medically established as a congenital or developmental defect, it will be considered as a "disease" under applicable VA laws and regulations and adjudicated as such. See U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(c); VA O.G.C. Prec. Op. No. 82-90, 55 Fed. Reg. 45711 (1990). Second, while scoliosis was initially noted upon entry into service, there is absolutely no competent credible evidence that such disability permanently increased in severity during service, or that the appellant currently has such disability. Service medical records clearly indicate that scoliosis was mild upon entry, mild upon periodic examinations, and mild upon separation, with no evidence of any related trauma. Moreover, there is absolutely no post- service evidence of record of any treatment for symptomatology attributable to scoliosis. The Board has recognized the appellant's arguments that such scoliosis was aggravated during service as manifested by an increased serial profile for "symptomatic scoliosis," as well as complaints and treatment for recurrent low back pain. However, the Court of Veterans' Appeals (Court) has specifically held that the temporary increase of symptomatology or "intermittent flare-ups" are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt, 1 Vet.App. at 297. Furthermore, as there is no competent medical evidence of an increase in severity of the appellant's scoliosis during service, the appellant is not entitled to the wartime presumption of aggravation. See 38 C.F.R. § 3.306 (1994). Third, while the post-service medical evidence of record clearly indicates the appellant currently suffers from degenerative disc disease and spondylosis of the lumbar spine, there is absolutely no competent credible evidence that such disability is attributable to his active service. Service medical records, including x-rays of the lumbar spine, do not contain any findings or diagnoses of such disability. Furthermore, there is no competent medical evidence of treatment or a diagnosis for such disability within one year of separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). While some private medical records indicate the appellant reported a history of low back pain since service, others contain a reported history of low back pain beginning in 1990 following the start of an exercise program after a MI. These findings are consistent with the absence of complaints of back pain until 1990. Nevertheless, private objective medical reports of record indicate the appellant initially complained of and received treatment for low back pain diagnosed as degenerative disc disease of the lumbar spine in 1990, more than 12 years after separation from service, and there is no competent credible evidence of record that such degenerative disc disease is attributable to service. In fact, the only evidence that such current low back disability is related to service is the appellant's statements, which are unsupported by any medical evidence of record. Although the appellant's statements are probative of symptomatology, they are not competent or credible evidence of a diagnosis, date of onset, or medical causation of a disability. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 494-495 (1992); Miller v. Derwinski, 2 Vet.App. 578, 580 (1992). Arthritis of the lumbar spine (spurring) was also first noted many years after separation from service. Finally, it is apparent the that appellant is arguing that scoliosis, aggravated during service, resulted in his current degenerative disc disease and spondylosis of the lumbar spine. First, service connection has been established for scoliosis. Furthermore, the clinical evidence of record fails to demonstrate that scoliosis was aggravated during service, or that the current low back disability is causally or etiologically related to such scoliosis. Thus, there is no basis to conclude that the current low back disability is related to service. Therefore, the Board concludes that a pre-existing low back disability did not increase in severity, and was therefore not aggravated, during military service, nor does the appellant have a current chronic low back disability attributable to such service. ORDER Entitlement to service connection for a cervical spine disability is dismissed as the claim for benefits is not well grounded. Entitlement to service connection for disabilities of the low back, variously classified, is denied. MICHAEL D. LYON Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.